Covid-19 is definitely threatening a significant constitutional disaster. The disaster is staring us suitable in our faces, but we may not see, or could not be ready to entertain sight of it. We never would like that our Covid-19 situation proceeds till December 2020 and further than, but if it does, what is our destiny as a region? This ought to concern each and every citizen of Ghana.
I don’t feel we will like to see individuals throng polling stations for national elections in the wake of Covid-19, when we have already opposed the things to do of NIA and the like because of Covid-19. Now, if the situation continues to be or worsens by December 2020, elections could possibly be postponed over and above December 2020. If elections are postponed, this is what is likely to transpire:
By posting 66(1) and (3) (a) of our structure, the phrase of business office of the President is 4 yrs commencing from the working day he was sworn in. The President was sworn in on 7th January 2017. This signifies, at midnight of 6th January, 2021, our President will stop to be the President of Ghana No President, no Vice President.
By short article 113(1) of the constitution, our Parliament also has a expression of 4 a long time from the date of its initial sitting down, and shall stand routinely dissolved soon after the interval of 4 decades. This also suggests, after midnight of 6th January 2021, Parliament will stand quickly dissolved No Parliament, no Speaker.
On the other hand, just like equity, I think a structure suffers no incorrect without having a cure.
What then will be our worst state of affairs? How can we solve the crisis inside of the remits of our constitution?
1. Some of us are already seeing a solution in Report 113 (2) of the structure which empowers Parliament to lengthen its term over and above the 4 decades if “Ghana is really engaged in war”. It is for that reason envisaged that Parliament, in the instances, will lengthen its expression outside of December 2020, due to Covid-19. Problem is: can protecting against the distribute of a Pandemic be construed as “war” for the purpose of short article 113(2)?
In my impression, the word “actually” in post 113(2) indicates a deliberate expression of the framers’ preference for the common indicating of “war” and nothing at all else not even a menace of war. The everyday that means of “war” nevertheless, is a condition of armed conflict in between two international locations, or groups within just a region. “War” in short article 113(2), as a result, contemplates an armed conflict between persons. Appropriately, avoidance of covid-19 unfold simply cannot ordinarily indicate “actual engagement in war”.
Purposive interpretation may only make it possible for a departure from the common this means if, and only if, the regular indicating within the context sales opportunities to an absurdity or is possible to produce unreasonable consequence. Now does the phrase “war” in the context of write-up 113(2) and the entire constitution generate any absurdity? I consider not. Another person may, but I can’t discover the absurdity. I think we would relatively be over stretching the linguistic or semantic prospects of the term “war” if we construe a countrywide well being disaster as war. Accordingly I don’t think post 113(2) applies.
2. Many others are observing a remedy in post 298 of our constitution. Article 298 empowers Parliament to deliver for matters that the structure hasn’t presented for (expressly or by necessary implication). Below, it is also envisaged that, Parliament will move an Act extending its possess phrase and that of the President on the foundation that the structure has not presented for pandemics and their outcome on elected officers’ tenure.
That would also be in appropriate in my watch. The constitution has supplied for the two Presidential and Parliamentary tenures expressly. In the scenario of the President, the structure has not presented for extension of his expression further than 4 decades other than by way re-election. This is realistic, for the reason that the structure has now created an buy of succession to the Presidency anytime it is vacant. In the circumstance of Parliament, the extension may be built only when Ghana basically engages in war. In all other situation, the phrase of Parliament is 4 several years.
Accordingly, if Parliament purports to make a Law below short article 298 extending its personal tenure and/or that of the President only owing to covid-19 pandemic, that Act would be inconsistent with articles or blog posts 66(1), (3)(a), 113 (1) and (2), as perfectly as article 298 of the constitution by itself. Definitely, I really do not see a constitutional solution in report 298 as well.
3. Another achievable remedy is in chapter 25 of the constitution, which is modification of the structure. Nonetheless, the provisions that demand amendments less than the situations are entrenched provisions. Their amendment involves a countrywide referendum, which will pose the same risk in terms of covid-19 as the national election by itself may well. In other text, we may as perfectly keep the national elections if we have to keep a nationwide referendum in get to postpone it legitimately. Below again, constitutional amendment will not avail us.
What then is the best constitutional remedy in these types of a scenario? Our greatest treatment in my opinion, is in content 57(2) and 113(3) of the structure. Posting 57 (2) tends to make the Chief Justice upcoming in Order of value soon after the Speaker of Parliament. Really, the structure has not expressly supplied that the main justice succeeds the Presidency. On the other hand, primarily based on write-up 57(2), we commonly swear the Main Justice in to act as President in the absence of a president, Vice President, and the speaker. That has grow to be the convention. Appropriately, if the elections in December 2020 elude us (which is imminent), the Chief Justice should be sworn in as the acting president on 7th January 2021.
Now, post 113(3) empowers the President to phone again a Parliament that is dissolved ahead of elections, if he is contented that because of to a condition of war or General public unexpected emergency, it is needed to connect with it again. In my viewpoint, “the president” as made use of in write-up 113(3) also include things like an acting president. As currently mentioned, I assume there’s no condition of war in Ghana at the moment. On the other hand, the Covid-19 situation in Ghana suffices as foundation for declaring a point out of unexpected emergency by the President or performing President. Accordingly, the performing President may declare a point out of unexpected emergency underneath short article 31 of the constitution and contact back again the dissolved Parliament. He will then operate the place until finally it is risk-free enough to maintain a countrywide election. In that Circumstance the most senior Decide of the Supreme Court will be performing as the Chief Justice.
The acting President may appoint new ministers of condition or endorse the previous Ministers. In either circumstance, they must go by parliamentary acceptance on the authority JH MENSAH V THE Attorney-Basic.
From wherever we stand, therefore, I foresee the Chief Justice ruling this nation with an prolonged mandate of the current Parliament soon after 6th January 2020. Interestingly, and for the initially time in our background, we will have none of our presidential candidates campaigning from incumbency. Gird up your loins!